Fisk

Action for the foreclosure of a mortgage. The facts are stated in the opinion rendered upon a former appeal. (Fisk v. Casey, 36 Pac. Rep. 668 .) To a complaint in the usual form, the defendant alleges that after the maturity of the note he applied to the plaintifE to ascertain the amount due thereon for the purpose of paying the same and, having the property discharged from the lien of the mortgage, and that upon such application the plaintifE “claimed to be the owner of the property, and refused to entertain any ofEer from the defendant to pay off and discharge said mortgage.” The court found against the portion of the averment thus quoted, and rendered judgment in favor of the plaintiff.

The defense thus pleaded was an affirmative one on the part of the defendant, to be established to the satisfaction of the court by a preponderance of evidence, but the testimony of what occurred at the interview between the plaintiff and defendant, which was offered upon this issue, was conflicting, and the finding upon this conflict of evidence must be accepted as conclusive. It must be also noted that the defendant does not allege that he made any offer of payment, except argumentatively,…